Religious Liberty and the Affordable Care Act

Yesterday, on July 30, the Supreme Court issued it’s final ruling on Burwell v. Hobby Lobby Stores, Inc. In summary, this case involved a clash between the mandates of the Affordable Care Act of 2010, requiring all businesses with a minimum of employees to provide  with comprehensive health insurance, including no-cost access to twenty different kinds of contraceptives. The owners of Hobby Lobby, self-proclaimed “born-again Christians,” have moral objections to four of the twenty listed methods of birth control. Amy Howe, a reporter for SCOTUSblog, summarized the subsequent legal situation well in “Birth control, business, and religious beliefs: In Plain English“:

Because they believe that human life begins at conception, the families therefore believe that if the corporations were to cover those four forms of birth control, they would in essence be “complicit in abortion.”

The families and the companies went to court, arguing that the “birth control” mandate violated the Religious Freedom Restoration Act (RFRA), a 1993 law that Congress enacted as a response to a 1990 Supreme Court decision holding that an individual’s religious beliefs do not excuse him from having to follow a law that applies to everyone…

The Supreme Court narrowly ruled in favor of Hobby Lobby. Justice Alito, delivering the Opinion of the Court, concluded:

The contraceptive mandate, as applied to closely held corporations, violates RFRA.

This ruling seems to put a loosely defined subset of corporations on the same plane as individuals with regard to religious freedom. For many people, myself included, this language is troubling, as it seems to suggest that some corporations, at least those which are “closely held,” can opt out of laws which offend the sensibilities of the owners.  These fears have been expressed through a variety of internet memes and posters:

An excellent point from one of my former students. </p><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br />
<p>Via The Left Compass

Embedded image permalink (https://twitter.com/bakerbk/status/483642132750553090/photo/1)

HL meme 30

HL meme 3

HL meme 9

These images touch on several different fears that result from this ruling, including:

  • That as the rights of the fetus and the corporation are expanded, the rights of women are being curtailed
  • That the health of thousands of women will suffer as their employers withdraw health benefits for the treatment of dozens of health problems treated by birth control
  • That “closely-held corperation” is such a vague and legally amorphous term that this ruling will open the door to all manner of religiously based discrimination and interference in employee (read: everyone’s) life
  • That Americans everywhere could find themselves unable to shoulder the costs of other medications or procedures in the future, because of their employer’s personal beliefs
  • That unwanted pregnancy and abortion rates will rise

Hobby Lobby has rejected four methods of contraception, two of these are emergency contraception (“day after”) pills, vital to women who have been sexually assaulted or have experienced primary birth-control failure (such as condom breakage, a diaphragm tear, or antibiotic interference with the pill). The other two are hormonal and copper IUDs (Intrauterine Devices), one of which may be used as emergency contraception. The non-hormonal “Copper T” is a popular choice among women who cannot or prefer not to take hormonal contraceptives, who are allergic to latex or spermicides, or who simply want to rest comfortably in the knowledge that they will not get pregnant for 10 to 12 years unless and until they have their contraceptive method removed.

The impact of this decision on women workers is huge. The majority of Americans receive their healthcare entirely from their employer, and while two of the birth control methods rejected by Hobby Lobby may be obtainable for between $30 and $80 (a significant barrier to economically lower class women), the other two may cost between $500 and $1,000 (a significant barrier to lower and middle-class women, i.e. the majority of the American female workforce). Removing coverage for these methods of birth control effectively bans their purchase by Hobby Lobby employees unless they are able to save for them over time, the very kind of arrangement the Affordable Care Act was intended to make unnecessary, and an impractical expectation for at least three of these methods, since the need for emergency contraception, by nature, tends to be a surprise circumstance.

It’s worth noting that the Green family’s objection to three of the four banned contraceptivesnamely that they induce abortionis medically without merit, even if ‘pregnancy’ or ‘life’ are defined as the moment sperm fertilizes egg. Both emergency contraception pills and the hormonal IUD option prevent pregnancy by delaying ovulation (removing egg from the equation). There is no evidence that these contraceptives harm or in any way disrupt the implantation of a fertilized egg. Research on how the copper IUD prevents pregnancy is inconclusive.

There are, of course, many other concerns to be had with this ruling. It’s worth your time to read the dissent written by Justice Ruth Bader-Ginsburg (hyperlink contains compelling excerpts and access to the complete document, the table of contents is your friend).

And while you’re at it, watch this songified version of some of its most poignant passages (the chorus takes some editorial liberties):

I also found these articles and documents to be informative and compelling:

As a skeptic and a woman, I echo many of the concerns expressed above. Specifically, I wonder if this ruling represents yet another way in which the religious majority may enforce its values through American law and politics. I think all religious minorities, and especially secularistswhose sexual ethics often have little in common with the Abrahamic religionshave particular reason for concern. Christians comprise approximately 78% of the American population, it follows that the majority of non-Christians are employed by people of differing worldviews and convictions. For the atheist who works at Hobby Lobby, or the Hindu, Muslim, Sikh, or Jew who is gainfully employed at any “closely-held corporation” decisions about their personal life and healthcare may now be financially determined by their (probably Christian) employer’s religious convictions, instead of being solely governed by their own medical needs and personal desires.

In other words, because of this ruling, religious minorities across the nation may be compelled by their employers to make decisions that differ from what they would have chosen were their healthcare strictly personal matter between themselves and the medical personnel they choose to consult. It would appear those days of private decision making are over.

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